Criminal Justice By the People, For the People:

Shifting to a System of Electing Provincial and City Prosecutors

With the Goal of Ending Miscarriage of Justice

A Thesis Proposal

to be Presented to the Faculty

of the College of Law

of De La Salle Lipa

In partial fulfillment

of the requirements for graduation

of the Juris Doctor program

of De La Salle Lipa

Submitted by:

Karol Josef S. Gutierrez

 Chapter 1

BACKGROUND OF THE STUDY

“It is better to set ten guilty men free than to incarcerate an innocent man.”

-William Blackstone

Introduction

Men think that the fate of accused persons rest in the hands of juries where

there are juries, and , where there are none, in the hands of judges. In truth and in

fact, the fate of accused persons rest in the hands of prosecutors who may choose

whether or not to prosecute, what crime may be charged, or what penalty is to be

sought. But looking deeper, one must consider, in places where prosecutors are

appointed, the appointing authority is the one who ultimately holds the power in

order to decide those things. But in 48 out of 50 States of the United States of

America, the electorate hold the power to choose the persons who will exercise their

own discretion to decide these things.

Of all the criminal justice systems in the world, the United States of America

is a peculiar one which has baffled many other jurisdictions because of the concept

of an elected prosecutor. Of all the jurisdictions in the world, the United States is the

only one which practices the election of chief prosecutors.1 Although the title of

1
Ellis, Michael. 2012. “The Origins of the Elected Prosecutor.” Yale Law Journal 121 (6): 1530.
prosecutor varies depending on the State wherein they are elected to office, on a

supermajority, the States in the United States elect local and state prosecutors with

only 4 States who appoint their chief prosecutors, according to Jacoby.2

Although the United States is the only country which practices the election of

chief prosecutors, the country did not always do so. In fact, in spite of its declaration

of independence in 1776, the country only began to consider the election of

prosecutors sometime between 1820-1860 when drastic shifts were starting to be

made to adopt more democratic processes in America. Many state constitutions

decided to adopt the election of prosecutors during this period.

The change was not fully welcomed by all people. Although many members

of different constitutional conventions heavily supported the change, the proposal

was also heavily criticised by others who felt that the concept of an appointed

prosecutor would lead to undesired influences from different political parties or even

to lead to the prosecution only of those cases which would be more widely covered

by the press. Apparently, from the debates concerning the amendment of the New

York State Constitution, the proponents of the elected prosecutor took little notice

of the effects of its implementation to the criminal justice system. Further, the

2
Jacoby, Joan E. 1997. “The American Prosecutor: From Appointive to Elective Status.” Prosecutor , September
1997.
election of prosecutors, according to its critics, has led to some prosecutors seeking

higher conviction rates regardless of the circumstances of each case.

There have been many developments since then which now serve to address

the criticisms. Since the adaptation of the system of electing prosecutors by the

different States who were already members of the Union, Jacoby observed that no

State which has joined the Union since 1850 has chosen to adopt the concept of

appointed chief prosecutors. 3 It was also observed that the past two years have

brought a “wave of prosecutors promising less incarceration and more faireness” as

a result of the election of the said prosecutors, this, in spite of their different political

inclinations. As an example, District Attorney Gonzalez of Brooklyn, N.Y. Has

advanced a new principle where incarceration is the exception rather than the rule.

More other prosecutors who have been elected into office have followed this trend,

choosing to adopt policies within their respective offices to better ensure that the

very essence of criminal justice, reformation, is achieved. It was also brought to light

that the criminal justice system, as it is now structured, is destined to fail.

Incarceration, which is the commonly perceived goal of criminal justice, robs the

offender of any chance of reformation, taking from the person deprived of liberty

the opportunity to be employed in the future, stripping the same person of any

possibility of approprate attention for physical and mental health, and even of the

3
Id.
basic necessity of shelter in the future, seeing as landlords will not likely enjoy the

idea of a having a person formerly deprived of liberty as a tenant.4 To further address

the criticism on the possibility of political influence on the elected prosecutors, the

same is unpersuasive. If it were otherwise, Democrats would have been proponents

of the elected prosecutor during a time when the Democratic Party was more

influential. This, however, was not the case.5 On the contrary, the implementation of

a system which provides for the election of chief prosecutors were made during a

time when neither the Democratic nor the Republican party exercised significant

political influence so as to be assured of election.6

Seeing that the fears which were pointed out by those who opposed the

implementation of a system of electing chief prosecutors seem to have never been

realised, the study will attempt to analyze how this same system may be

implemented in Philippine jurisdiction. The study will have one very important

reason to propose this bill which will provide for the shift in the manner in which

men and women are put in the office of city or provincial prosecutor, that reason is

that a system of electing city and provincial prosecutors must be implemented in

order to lessen, if not altogether dispense with miscarriage of justice. The study will

disucss this further in the following section.

4
Bazelon, Emily, and Miriam Krinsky. 2018. “There’s a Wave of New Prosecutors. And They Mean Justice.” New
York Times , December 11, 2018, sec. Opinion.
5
Ellis, Michael. 2012. “The Origins of the Elected Prosecutor.” Yale Law Journal 121 (6): 1535.
6
Ratcliffe, Donald. 2000. “The Politics of Long Division: The Birth of the Second Part System in Ohio, 1818-1828.”
Problem Statement

The study will seek to answer the following questions:

1. Can a system of electing city and provincial prosecutors be

implemented in the Philippines by means of a proposed bill? If not,

what other way may the same be accomplished?

2. Is there reason to believe that the currently prevailing system of

having city and provincial prosecutors appointed only by the

president has contributed to miscarriage of justice?

3. Can the implementation of a system of electing city and provincial

prosecutors in the Philippine jurisdiction lessen, if not altogether

eliminate, miscarriage of justice? How?

The study will now discuss these questions in seriatim.

Can a system of electing city and provincial prosecutors be implemented

in the Philippines? If so, how?

The study deems it necessary to first seek to answer this question

because it is a fact in the legal regime that there are some things which cannot

be implemented as laws. This is so because of the principle that all laws must

bow down to the Constitution, the latter being the fundamental law of the land,

the very law from which the power of the legislature to make and enact laws

precedes. This is a principle which seems to have existed since as long as

Constitutions have existed, because this was the very essence of Constitutions:

to create limitations as to the exercise of power by those who hold it.

Hence, should it appear that the goal of implementing a system of

electing city and provincial prosecutors cannot be implemented without

offending the Constitution, the product of the study would be the creation of

a Constitutional amendment.

However, if it be found that there is in fact nothing in the Constitution

which will be offended by the same, then the study will proceed so as to be

able to create a proposed bill for the implementation of said system.

 Is there reason to believe that the currently prevailing system of having

city and provincial prosecutors appointed only by the president has

contributed to the problem of miscarriage of justice?

The Supreme Court has noted that there is a high rate of judicial error

wherein people were wrongfully sentenced to death in the Regional Trial

Courts.7 It is the position of the study that the rate of judicial error admitted

by the High Court in the said case could not only be attributed to the failure

of judges to appropriately weigh the evidence presented by the prosecution,

but, ultimately, the very root of these judicial errors could be found in the

erring prosecutors who could have properly exercised their discretion in the

first place to avoid the penalty of death. It has also been shown by surveys

conducted by agencies such as the Social Weather Station that a significant

number of Filipinos would, in fact, have preferred that a penalty lower than

death be sought for accused persons. 8 Following this, then logically, a

significant number of Filipinos, if given the power to do so, would also choose

7
People of the Philippines v. Efren Mateo. G.R. Nos. 147678-87. July 4, 2004.
8
Weather, Social. 2018. “Social Weather Stations | March 2018 National Survey On Public Perceptions On The
Death Penalty: 33% Or Less Demand The Death Penalty For 6 Of 7 Crimes Related To Illegal Drugs.” October 10,
2018. https://www.sws.org.ph/swsmain/artcldisppage/?artcsyscode=ART-20181010122553
 to elect prosecutors who would choose to exercise prosecutorial discretion in

order to indict accused persons for offences punishable by lower penalties.

Can the implementation of a system of electing city and provincial

prosecutors in the Philippine jurisdiction lessen, if not altogether

eliminate, miscarriage of justice? How?

The study further posits that had there been a shift from appointing

prosecutors to electing them, there is a high chance that this high rate of

judicial error never would have come to pass seeing as according to a survey

conducted by SWS in 2018, when Filipinos are faced with options, it is more

than 50% will opt for a penalty other than death. The study thus posits that if

majority of Filipinos have this sentiment, then it is also likely that a majority

would have chosen to elect a prosecutor who would have chosen to pursue a

lower penalty had the system of electing prosecutors been in place prior to the

circumstances which eventually led to the numbers pronounced by the

Supreme Court.9

9
Mateo
Objectives of the Study

In order to accomplish the main goal of the study which is to create a proposed

bill which will provide for the shift from a from a system of appointing prosecutors

to a system of having Provincial and City Prosecutors elected by those who reside

within their jurisdiction in order to lessen or even eliminate totally miscarriage of

justice, it seems that it is necessary for the study to discuss how this objective is

legally achievable through the enactment of a bill. It is further deemed necessary to

look into how the bill to be proposed will be able to address the problem of

miscarriage of justice by ensuring prosecutorial transparency with the defense

counsel, prosecutorial transparency with the constituency, as well as prosecutorial

disciplinary measures which will allow the electorate to move for a prosecutor’s

suspension and even removal. The study will then finally seek to show that an

implementation of a system of electing prosecutors which also provides for

safeguards concerning the manner in which prosecutors exercise their discretion will

effectively lessen or eliminate miscarriage of justice. These separate “sub-objectives”

shall be discussed in seriatim hereafter.

Legal Feasibility of Implementing a System of Electing City and

Provincial Prosecutors

The study will first seek to briefly show that it is indeed legally possible

for a system of electing city and provincial prosecutors to be elected in the

Philippines rather than appointing them.

A Bill which Provides for Prosecutorial Transparency with Defense

Counsel

The study will then look at the Prosecutorial Transparency Act in the

United States which has been said to be a key factor in the battle to end

miscarriage of justice in America and then look at the provisions therein which

would help the study achieve the goal of creating the proposed bill. The study

will then seek to incorporate these said provisions into the proposed bill in

order to ensure that it is laid out as part of the duties of the elected city or

provincial prosecutor that certain disclosures are made to defense counsel in

order to ensure that the defense is also able to adequately prepare and thus

protect the right of the accused, which will then result in the avoidance of

miscarriage of justice.
A Bill which Provides for Prosecutorial Transparency with Constituency

It will not be possible for a the electorate to appropriately exercise the

privilege and duty of suffrage if they are not well-informed of the candidates

for whom they may choose to cast their ballots. Indeed, the Supreme Court

itself has said that “[t]he heart of democracy lies in the majoritarian rule but

the majoritarian rule is not a mere game of dominant numbers. The majority

can rule and rule effectively only if its judgment is an informed one. With an

informed electorate, a healthy collision of ideas is assured that will generate

sparks to fan the flames of democracy. Rule by the ignorant majority is a sham

democracy – a mobocracy – for in the words of Jefferson, a nation cannot both

be free and ignorant. If there is anything that democracy cannot survive, it is

the virus of ignorance.” Thus, the study is constrained to have a goal which

will create a bill that would ensure that the electorate is appropriately informed

of the persons for whom they may and the manner in which these candidates

have served and exercised the control and wide degree of discretion granted

unto prosecutors.
A Bill which Provides for Discipline of Erring Prosecutors by Suspension

and/or Removal

The study also recognises that there are instances which are not few where,

although the electorate have been deceived into putting into power men and

women who have been later found unfit to hold office, the electorate do not

always sit back and wait for the terms of these men and women to end. So it

is especially with the Philippines which has revolted after waking up to see

that it had wrongfully and erroneously elected 2 unfit presidents. As such, the

study will seek to create a bill which will allow the electorates of cities and

provinces to remove from office such elected prosecutors without the

necessity of revolution.

A Bill which will Ensure that Prosecutorial Discretion will be Exercised

in a Manner that will Avoid and/or Eliminate Miscarriage of Justice

The study will seek to create a proposed bill which will ensure that the

prosecutors who are elected will exercise the wide degree of discretion

granted to them in a manner which will satisfy the sentiment of the Filipino

people according to surveys which show that a significant number of them do

 not wish for any person to answer for a crime which they may not have

committed, or even still, suffer a penalty which is more than what is just.

The wide discretion exercised by prosecutors in the United States on

the manner of prosecution, the penalty sought, the bail required, and the

ultimate charges against defendants basically dictate the direction of the entire

case. If the prosecutors choose to exercise this discretion in order to deliver a

more effective manner of criminal justice where incarceration is the exception

and the general rule is diversion from penal institutions while having the same

accused persons admitted into institutions that can ensure that the same

individuals would no longer become recidivists. And this is exactly what has

been happening for the past two years in the United States, as previously

discussed.10

It is important to note at this point that prosecutors in the Philippines

exercise a similarly wide degree of discretion in the filing of criminal actions.

“All criminal actions either commenced by complaint or by information shall

be prosecuted under the direction and control of a public prosecutor.”11 In fact,

the Supreme Court has held Gonzales v. Court of First Instance that the

prosecution’s discretion is supreme over that of the person against whom the

10
Bazelon, Emily, and Miriam Krinsky. 2018. “There’s a Wave of New Prosecutors. And They Mean Justice.”
New York Times , December 11, 2018, sec. Opinion.
11
Rule 110, Section 5 of the Revised Rules of Criminal Procedure
 crime was actually and directly committed.12 Thus, even if a person who was

robbed chooses to no longer proceed with the same in court, in practice, if the

person’s testimony has been recorded by the police, and if the thing stolen can

still be produced and offered formally as evidence, then the criminal action

against the accused may still continue if the prosecutor wishes to do so,

especially if doing so would please the official who appointed the said

prosecutor because of the increase in rate of convictions. This is of course, not

without exception seeing as dismissals for reasons of lack of interest to

prosecute is possible. However, because of this, it seems that if a prosecutor

wishes to continue the criminal action, all the prosecutor would really need to

do is to secure the attendance of the complainant.

Significance of the Study

Legislature

The study would be of great benefit to the legislature. Seeing as the very

objective of the study is to be able to create a proposed bill, the product of the

study will be useful for the legislative body as a whole or for a single legislator

12
People of the Philippines vs. Mitsuel Elarcosa and Jerry Orias. G.R. No. 186539. June 29, 2010.
or a group of them, should they seek for alternative measures in order to

address the problem of miscarriage of justice.

Advocacy Groups

The study is significant to groups such as Amnesty International,

Innocence Project Philippines Network, and other similar NGOs which have

sought improvement in the criminal justice system. These groups seek to

ensure that justice is properly served by lessening the rate of wrongful

convictions and by taking action to exonerate those persons who have been

wrongfully deprived of liberty. Should this study successfully create a

proposed bill to shift from a system of appointing prosecutors to electing them,

then these same groups may lobby for the passing of this legislation. This will

be done in the interest of improving the criminal justice system by electing

prosecutors who wish to attain justice instead of high conviction rates.

Prosecutors and Members of the Legal Profession

Each lawyer who takes the oath and signs on the roll takes upon

themselves the duty to advocate for legal reforms in the interest of justice.
This study will be able to provide a perspective to all prosecutors who are

currently serving as such so that they may see how much they may contribute

in order to prevent, or worsen, the problem on miscarriage of justice. It will

also provide a perspective for all those who are currently serving as lawyers

in different capacities so that they can better form their advocacies against

miscarriage of justice.

Philippine Electorate

This study further finds significance in the current political climate of

the Philippines which now seemingly leans towards retribution rather than

reformation. Should there be a shift from a system where prosecutors are

mostly appointed by the Chief Executive to a system where local chief

prosecutors are elected by the residents within the jurisdiction of their office,

and if the data is accurate that the Filipino people prefer reformation rather

than the retribution which seems to be the current goal of the political

branches of the Philippine government, then the shift would result in a

prosecutorial service which obeys not the whims of the appointing power, but

rather, reflect the desires of the electorate.

Scope and Limitation

In the pursuit of the goal to create a proposed bill to shift from a system of

appointing prosecutors to the election of the same, the study will be limited to the

creation of a bill to elect Provincial and City Prosecutors. As a consequence thereof,

the study will be limited to the election of prosecutors based on the will of the local

electorate so that criminal actions in local jurisdictions may be prosecuted according

to the sentiments of the electorate which reside in said jurisdictions. The study will

thus have this limitation in light of the fact that as a general rule, criminal actions

are prosecuted under the direct control and supervision of the local prosecutor who

has jurisdiction over the place where the crime was committed.

Definition of Terms

For purposes of this study, the following terms shall be used in the sense to be

provided hereinafter:

Prosecutor – local chief prosecutor which may be Provincial or Local;

Electorate – registered voters within the local government unit who elect the

provincial or city prosecutor depending on whether they reside in a

municipality or city, respectively;

Local government unit – the province or the cit wherein the prosecutor is to

be elected;

Miscarriage of Justice – cases where conviction of the accused were

wrongfully attained; and

Prosecutorial discretion – the judgement of the prosecutor in the exercise of

the authority to supervise and control the prosecution of criminal actions.

 Chapter 2

REVIEW OF RELATED LITERATURE

Introduction

The chapter intends to present to the reader the different scholarly studies and

works made my different authorities on the subjects of miscarriage of justice, the

manny by which selected States of the United States provide for the election of their

prosecutors, election of prosecutors, how a proper exercise of prosecutorial

discretion can actually prevent, if not altogether eliminate miscarriage of justice, the

manner in which the preference of the electorate can influence the exercise of this

jurisdiction, local election laws in the Philippine jurisdiction which provide for the

removal of elected local officials, and how safeguards can be implemented in order

to ensure that said discretion is exercised in accordance with the desires of the

electorate.

Studies and Literature Reviewed

Seeing as the study posits that the implementation of a system of electing chief

prosecutors in the Philippines would be a solution to the ending of miscarriage of

justice in the Philippine criminal justice system, the study will seek to discuss what

the concept of miscarriage of justice is and how the exercise of prosecutorial

discretion can either increase or decrease the same. The study further finds it

necessary to look into the authority exercised by District Attorneys in the US, and

by City and Provincial Prosecutors in the Philippines. The United States jurisdiction

will be looked into, it being the only jurisdiction in the world where chief prosecutors

are elected, and the Philippines, because it is the jurisdiction for which the study

seeks to provide as a solution to eliminate miscarriages of justice the election of chief

prosecutors. The study also wishes to review literature concerning the matter in the

two jurisdictions so as to illustrate in later chapters how an exercise of this authority

could result in the ending of miscarriages of justice. After accomplishing a review

of studies on the control over criminal actions which prosecutors exercise, the study

will then conduct a review of literature on the effects of a system of electing

prosecutors on the eradication of related literature. All these things will be so

conducted by the study so as to further create a foundation upon which the study

may build so as to create a proposed bill which will implement a system of electing

city and provincial prosecutors in a manner which will guarantee the elimination of

miscarriages of justice caused by the wrongful exercise of prosecutorial discretion.

Miscarriage of Justice

The phrase “miscarriage of justice” means the failure of the justice system to

exact justice depending on the circumstances of each case. The phrase is now more

commonly used to pertain to cases where innocent persons are made to answer for

crimes which they did not commit, or even still, for cases where the accused are

made to suffer penalties which are more than that which the law provides for the

crime actually committed. The position has also been offered that the manner in

which justice systems have been structured make miscarriage of justice and

inevitable, albeit exceptional and far from conceivable of acceptance.13

0Miscarriage of justice is a concept which has been accepted by the 1987

Constitution to actually exist given certain circumstances. This is evidenced by the

fact that the Constitution expressly grants the Supreme Court of the Republic of the

Philippines to change the venue of a criminal trial in order to avoid miscarriage of

justice.14

The Constitutional Commission took time to deliberate on the matter of

miscarriage of justice and the dangers and evil of the same on the 17th day of July of

1986.15 Surely, if the Fundamental Law and Its framers seek to avoid miscarriages

13
Nobles, Richard, and David Schiff. 2012. Understanding Miscarriages of Justice: Law, the Media, and the
Inevitability of a Crisis. Oxford Scholarship Online.
14
Phil. Const. art. VIII, § 5(4).
15
1986. “Record of the Constitutional Commission Proceedings And Debates.” Vol. 1.
of justice, then it would be necessary to make changes both in substantial laws and

in the manner in which the justice system is structured so as to achieve this objective.

The Exercise of Prosecutorial Discretion and its Relation to Miscarriage of

Justice

Now that the study has concluded in its review of significant literature which

show the necessity of avoiding miscarriage of justice, the study will now provide

hereinafter observations from the studies of the discretion exercised by prosecutors

in the United States and in the Philippines, and finally, conduct a study or analysis

as to how exercise of discretion of elected officials are affected by the desires of the

electorate.

A June 2004 report from the Judicial Records Office of the Supreme Court of

the Republic of the Philippines shows that at the time, the Supreme Court had

reviewed 60.75% of decisions of trial courts where the death penalty was imposed,

in accordance with the Constitution’s mandate of automatic review of cases of

imposition of the said penalty. The same office further admits in the said report that

of the number of cases reviewed by the Supreme Court, only 25.36% of these cases

were affirmed, with 64.61% resulting in the lowering of the sentences after the same
were remanded to the trial courts, and about 7.17% of resulting in acquittals after the

same were reviewed by the Supreme Court.16

After having taken judicial notice of the miscarriage of justice reflected by the

report mentioned, the Supreme Court, in the year 2004, decided that there was

already a necessity to amend the rules for the appeals of cases involving death

penalty.17 It is observed that the reason for the amendment of the rules was caused

not because of the penalty of death in and of itself but rather, because the High Court

took judicial notice of the need to ensure that no one suffer a penalty higher than that

which the law dictates they must suffer. This thus gives the impression that had it

been the penalty of reclusion perpetua which the Constitution mandates the Supreme

Court to review, and statistics of showed that trial courts rendered erroneous

judgements imposing the said penalty when the same was not proper, then the

Supreme Court would have arrived at the same conclusion: that an amendment of

the Rules was necessary in order to address this miscarriage of justice.

US District Attorneys exercise a wide degree of discretion in the manner in

which criminal cases are prosecuted. 18 District Attorneys exercise prosecutorial

discretion not only on the prosecution of cases but also in the conduct of criminal

16
Judicial Records Office of the Supreme Court of the Republic of the Philippines. 2004. “Statistics on Automatic
Review of Death Penalty Cases.”
17
Mateo
18
Banyopadhyay, Siddharta, and Bryan McCannon. 2014. “The Effect of the Election of Prosecutors on Criminal
Trials.” Public Choice 161 (October): 141–56.
investigations in cases where authority is granted by law. 19 Prosecutorial discretion

is virtually absolute in the manner of handling the prosecution of criminal cases,

limited only by criminal statutes, jurisprudence, and remedial issuances from the

judiciary.20

It is also worthy to note that the National District Attorneys Association of the

United States also admit that the choice to take the first steps in criminal prosecution

are to be taken by the prosecutor’s office. And even where there are state laws which

allow prosecution to be initiated by persons other than District Attorneys, the District

Attorneys’ offices are still obliged by the the National District Attorneys

Association’s National Prosecution Standards to determine at the earliest possible

opportunity the merits of the case in order to make a sound decision based on

prosecutorial discretion whether or not the case must be pursued or abandoned.21

The abstract manner in which criminal laws have been drafted allow District

Attorneys to exercise prosecutorial discretion and even create policies in how cases

are handled, and whether or not the cases are pursued in court, plea bargains are

considered, and even the dismissal of the criminal action rooted on the fact that

prosecutorial discretion helps them assess at an early stage whether or not

convictions are legally possible. This is the case not only for the US but also for

19
Committee on Law and Justice. 2001. “What’s Changing in Prosecution?” Edited by Philip Heymann and Carol
Petrie. National Academy Press.
20
Tonry, Michael. 1998. The Handbook of Crime and Punishment. New York: Oxford City Press.
21
National District Attorneys Association. n.d. National Prosecution Standards. Third Edition.
other jurisdictions, then later on commenting that prosecutorial discretion is more

particularly broad in the US than others.22

It is further observed that even the American Bar Association Standards for

Criminal Justice: Prosecution Function and Defense Function are recommendatory

at best seeing as the implementation of policies to minimise prosecutorial

misconduct are also left to the very discretion of the District Attorney.23

The American Civil Liberties Union in February of 2019 also arrived at the

same finding, seeing the extent of the control of prosecutors and the exercise of

discretion on the manner of conducting criminal actions from investigations to

sentencing, and even during appeals. The American Civil Liberties Union further

attempted to demonstrate the extent of said control by showing how District

Attorneys may exercise discretion in making decisions concerning whom to charge,

what crime the accused may be charged for, what deal may be offered, should the

District Attorneys and their assistants even exercise discretion to offer one, the

granting of bail and even the amount thereof which the court would take into great

consideration, and even the sentence sought to be imposed. From this very finding

of the American Civil Liberties Union, we find that the District Attorney’s office

22
Gramckow, Heike. 2008. “Promoting Prosecutorial Accountability, Independence and Effectiveness.” New York.
23
1993. “Standards For The Prosecution Function.” Accessed November 21, 2019.
https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition-
TableofContents/.
truly has a nearly all-encompassing control over the conduct of criminal

prosecutions.24

Quite similarly, it is again observed that chief prosecutors in the Philippines

are also granted a similar wide range of discretion in the manner of conducting the

prosecution of criminal actions. Criminal actions are to be prosecuted under the

direction and control of a public prosecutor.25 This exercise of discretion by the

public prosecutor is one which is nearly absolute in nature. The exercise of

prosecutorial discretion is nearly absolute when exercised on the matters of what

charges must be filed, who must be prosecuted, how the prosecution of the criminal

action must be conducted, and even whether or not the action must be withdrawn

prior to arraignment even without notice and hearing.26 Riano (2016) also admits

that the prosecutor’s exercise is nearly absolute in nature, admitting only of two (2)

exceptions: that the prosecutor’s judgement is subject to review by the Secretary of

Justice; and that the same is subject to review by a regular court of justice in cases

of grave abuse of discretion.27 It is likewise worthy to note that the Supreme Court,

in the case of Mario Fl. Crespo vs. Hon. Leodegario L. Mogul, has held that when a

public prosecutor moves to dismiss a case already filed before the court because of

24
American Civil Liberties Union. 2019. “Unlocking the Black Box: How The Prosecutorial Transparency Act Will
Empower Communities and Help End Mass Incarceration.”
25
Rule 110, Section 5 of the Revised Rules of Criminal Procedure
26
Herrera. 2007. Remedial Law. Vol. Vol. 4.
27
Riano, Willard. 2016. Criminal Procedure. Rex Publishing House.
finding after re-investigation that the case is without merit, the said prosecutor’s

judgement must prevail even over the judgement of a judge who makes no

investigation. The Court further said that neither injunction nor prohibition would

be proper remedies which may be granted to those prejudiced by such dismissals.

The Court, adding to this, admitted that the only exceptions would be in cases where

it was necessary for the courts to step in to ensure that the law would not be used in

an oppressive or vindictive manner.28 And even then, the Highest Court was not able

to provide a remedy which would allow the people to ensure that the same prosecutor

will no longer be able to exercise that same control and wide discretion with such

capriciousness. This, the proposed bill shall also seek to address later on. The

Supreme Court makes this same pronouncement in People of the Philippines v. Hon.

Filomeno A. Vergara, to the extent of pronouncing that the public prosecutor does,

in fact, have quasi-judicial discretion to determine whether a criminal action must

be pursued in the courts of law.29

Election of Prosecutors and Implementation of Safeguards in Order to Prevent

Miscarriage of Justice

28
Mario Fl. Crespo vs. Hon. Leodegario L. Mogul., G.R. No. No. L-53373. June 30, 1987.
29
People of the Philippines v. Hon. Filomeno A. Vergara. G.R. Nos. 101557-58. April 28, 1993.
 Having accomplished a review of the degree of discretion which District

Attorneys in the US and public prosecutors in the Philippines are allowed to exercise,

the study will not proceed to look into literature concerning the development of the

United State’s system of electing Chief Prosecutors and how the implementation of

the same could result in the ending of miscarriage of justice provided that sufficient

safeguards are put in place.

At the time the implementation of a system of electing prosecutors was

proposed, there were those who strongly agreed with the same. There were, just as

well, those who strongly opposed. The fears of those who opposed the proposal to

amend State Constitutions so as to shift to election of chief prosecutors never

materialised. Their fear that political influences of parties would be improperly

utilised in order to secure the win in the prosecutorial office was unfounded. Had

this been true, then the Republicans would have moved for the shift when they began

to exercise greater political influence, and the Democrats, were the latter in the said

position. In fact, the shift to the system of electing prosecutors was pursued when

neither party was assured of political victory. After all this, no other State which

joined the Union after 1850 has chosen to appoint prosecutors. This could be

attributed to the perception that the system was appropriate and effective. An

important safeguard which ensured that no political influence could be exercised on

the District Attorney of New York: the framers of the New York Constitution
intentionally left out the position of District Attorney from the enumeration of

officers which the Governor could unseat.30

And to look at the effect of electing prosecutors on the likelihood of

miscarriage of justice, it is fruitful to revisit the writings of Banyopadhyay and

McCannon (2013) have observed that conviction rates increase significantly

whenever reelection season is nigh, thus creating a climate where miscarriage of

justice is much more likely to occur. 31 The weakness of legal controls over

prosecutors also contribute to the low accountability of prosecutors.32

The contrary position is advanced that the creation of laws which require

prosecutors to make certain information public knowledge and even constrain them

to do so in pain of losing funding for the office for non-compliance would

necessarily put an end to practices which hinge on the border of prosecutorial

misconduct and have led to miscarriages of justice.33

30
Ellis, Michael. 2012. “The Origins of the Elected Prosecutor.” Yale Law Journal 121 (6).
31
Banyopadhyay, Siddharta, and Bryan McCannon. 2014. “The Effect of the Election of Prosecutors on Criminal
Trials.” Public Choice 161 (October): 141–56.
32
Wright, Ronald. 2009. “How Prosecutor Elections Fail Us.” Ohio State Journal of Criminal Law 6 (January): 581.
33
American Civil Liberties Union. 2019. “Unlocking the Black Box: How The Prosecutorial Transparency Act Will
Empower Communities and Help End Mass Incarceration.”
Current Preference of the Electorate on the Prosecution of Criminal Cases

The election of prosecutors in the past two years have yielded the most

peculiar results. These elections in the United States led to the incumbency of some

prosecutors which challenge the status quo, going even to the extent of implementing

policies where diversion from jail is the rule and incarceration is the exception,

simply because voters have decided that they were in need of a criminal justice

system where miscarriage of justice must be eliminated. 34 This seems to be a

sentiment which, according to surveys conducted by the Social Weather Station in

March 2018, Filipinos seem to share.35

Effect of the Preference of the Electorate on the Manner in which Prosecutors

Exercise Discretion

Elected prosecutors would indeed seek to act in their office and execute the

duties and responsibilities thereof in a manner consistent with the desires of those

who elect them. 36 Connecting the same with the data stated earlier given by the

34
Bazelon, Emily, and Miriam Krinsky. 2018. “There’s a Wave of New Prosecutors. And They Mean Justice.”
New York Times , December 11, 2018, sec. Opinion.
35
Weather, Social. 2018. “Social Weather Stations | March 2018 National Survey On Public Perceptions On The
Death Penalty: 33% Or Less Demand The Death Penalty For 6 Of 7 Crimes Related To Illegal Drugs.” October 10,
2018. https://www.sws.org.ph/swsmain/artcldisppage/?artcsyscode=ART-20181010122553
36
Gordon, Sanford, and Gregory Heuber. 2007. “The Effect of Electoral Competitiveness on Incumbent Behavior.”
Quarterly Journal of Political Science Vol. 2 (2): 107–38.
Social Weather Station, Filipinos would in fact like to ensure that no innocent

persons are incarcerated and that no unjust penalty is imposed upon persons deprived

of liberty although guilty of crimes for which the law imposes lower penalties.37 The

Supreme Court said in 2004, “[t]he heart of democracy lies in the majoritarian rule

but the majoritarian rule is not a mere game of dominant numbers. The majority can

rule and rule effectively only if its judgment is an informed one. With an informed

electorate, a healthy collision of ideas is assured that will generate sparks to fan the

flames of democracy. Rule by the ignorant majority is a sham democracy – a

mobocracy – for in the words of Jefferson, a nation cannot both be free and ignorant.

If there is anything that democracy cannot survive, it is the virus of ignorance.”38

Hence, the study does posit that should there be adequate safeguards in order to keep

the electorate informed about the manner in which their elected prosecutors exercise

their discretion, then the electorate would be empowered not only to elect

prosecutors who will prevent miscarriages of justice, but also to remove those whose

exercise of discretion create a climate where the same is inevitable.

Constitutional Provisions from Selected State Providing for the Election of

Prosecutors

37
Weather, Social. 2018. “Social Weather Stations | March 2018 National Survey On Public Perceptions On The
Death Penalty: 33% Or Less Demand The Death Penalty For 6 Of 7 Crimes Related To Illegal Drugs.” October 10,
2018. https://www.sws.org.ph/swsmain/artcldisppage/?artcsyscode=ART-20181010122553
38
Arturo M. Tolentino v. COMELEC., G.R. 148334. January 21, 2004.
 In order to facilitate the creation of the proposed bill, the study will review the

provisions of the selected States whose provisions already provide for the election

of prosecutors. These selected States are New York, Massachusetts, Washington,

Illinois, and Pennsylvania. These specific States were selected for reasons of their

historical significance in achieving liberty and the creation of the system of electing

prosecutors, as well as the fact that these States, more especially so with New York,

have wonderfully laid out the manner in which prosecutors will be elected, their

qualifications, the jurisdictions, powers, and duties held by said prosecutors, and

even the manner in which said prosecutors may be removed. Each State’s relevant

Constitutional provisions shall be reviewed hereinafter in seriatim.

New York Constitution

Upon review of the Constitution of the State of New York, it is

observed that of the selected State Constitutions, it is the most complete. The

Fundamental Law seems to have appropriately provided for the prosecutor’s

powers and duties, the term for which the person so elected shall hold office,
 the timing of the election, the jurisdictions, as well as the manner by which

they may be removed.39

Massachusetts Constitution

The Massachusetts Constitution merely provides for the power for its

State Legislature to prescribe the term of office of district attorneys. It

provides for none of the other matters which the Constitution of the State of

New York provides for.40

Washington Constitution

The Constitution of the State of Washington does provide for the

qualifications, jurisdiction of its circuit attorneys, and their term of office.

However, the same Constitution leaves open the duties which circuit attorneys

have to the determination of the legislature. All other provisions which

concern their circuit attorneys are only those provisions which also concern

the first general election under this Constitution over a century ago.41

39
N.Y. Const. art. XIII.
40
Ma. Const. art. XIX
41
Wash. Const. art. VIII., § 19.
 Illinois Constitution

As for the State of Illinois, its Constitution has provided for the election

of State’s Attorneys for each county. The same Constitution also provides for

the qualifications of the candidates. Aside from those mentioned, the Illinois

Constitution does not provide for much else concerning the election of

prosecutors.42

Pennsylvania Constitution

Finally, for the State of Pennsylvania, its Constitution explicitly

provides for the fact that district attorneys are county officers and that all

county officers, aside from public defenders are to be elected during municipal

elections. The term of office of these prosecutors are also provided for.43

Title II, Book 1 of the Local Government Code

42
Ill. Const. art. VI
43
Penn. Const. art. IX. § 4.
 The objective of the study to create a proposed bill which will provide for the

implementation of a system of electing city and provincial prosecutors in the hopes

of eliminating, or at the very least, lessening miscarriage of justice. To attain this

purpose, it seems only fitting that there be a mechanism put into place which will

give the electorate the power to remove an erring elected prosecutor from office or

to suspend the said prosecutor in order to restrain the same from performing

prosecutorial functions. This, however, is only a necessary appendage to the

mechanism which will allow the electorate to put into office city and provincial

prosecutors.

In order to be able to do so, it seems only proper to review the same

mechanisms which have been put in place in the laws of the Philippine jurisdiction.

Thus, the provisions of the Local Government Code were reviewed. From the review

of its provisions, it has been observed that there are provisions which may serve as

models for the structure of the creation of the proposed bill. The pertinent and

applicable provisions found in Title II, Book 1 of the Local Government Code

provide for the qualifications and election of local government officials, vacancies

and succession, disciplinary actions which may be taken against erring local

government officials and recall in cases where the electorate loses confidence in a

government official.
Synthesis

Having accomplished an extensive review of related literature, it is already

made apparent that the problem of miscarriage of justice is always considered a

problem which needs to be addressed. Although some authors have chosen to say

that it is an inevitability, it is a common sentiment that miscarriage of justice must

be ended.

There is also a consensus as to how vast the degree of control which

prosecutors exercise in the manner in which criminal actions are conducted. There

is, however, a disagreement as to whether or not this is a good thing. It has been

pointed out that in the past, miscarriage of justice becomes more likely because of

increases in conviction rates when election season approaches.44 On the other hand,

it has also been pointed out that in recent years, there are other elected prosecutors

who have chosen to exercise the control and discretion they have in order to divert

from incarceration, thus lessening chances of miscarriage of justice.45 From this, it

is apparent that the control and discretion exercised by prosecutors is a two-edged

sword. If the control and discretion is used appropriately by good men and women

who serve the functions of prosecutor, miscarriage of justice may be dispensed with

44
Banyopadhyay, Siddharta, and Bryan McCannon. 2014. “The Effect of the Election of Prosecutors on Criminal
Trials.” Public Choice 161 (October): 141–56.
45
Bazelon, Emily, and Miriam Krinsky. 2018. “There’s a Wave of New Prosecutors. And They Mean Justice.”
New York Times , December 11, 2018, sec. Opinion.
and become nothing more than history. However, should this be exercised

capriciously and whimsically, the same may in fact be the very cause of miscarriage

of justice. It seems appropriate to point out once again that if only prosecutors had

appropriately exercised the control and discretion granted to them in the prosecution

of criminal actions, the 71.77% stated by the Supreme Court who never should have

been penalised a higher penalty than what was appropriate never would have reached

the said number. If they had simply exercised that control appropriately to seek the

imposition of a lesser, more appropriate penalty, no excessive penalty would ever

have been imposed by the trial courts. This is so because trial courts cannot impose

penalties higher than those which are appropriate considering the allegations in the

complaints or informations filed.

Filipinos, according to the SWS Survey earlier mentioned, actually wish to

make sure that no person ever answers for a crime which they did not commit.

Neither do they wish that a person suffers a penalty which is more grave or longer

than that which the law prescribes.46 If Filipinos then are given the power to elect

the prosecutors who will exercise control and discretion in the manner in which

criminal actions are prosecuted, it seems highly likely that they will elect prosecutors

who will ensure that there can be no miscarriage of justice within their jurisdictions.

46
Weather, Social. 2018. “Social Weather Stations | March 2018 National Survey On Public Perceptions On The
Death Penalty: 33% Or Less Demand The Death Penalty For 6 Of 7 Crimes Related To Illegal Drugs.” October 10,
2018. https://www.sws.org.ph/swsmain/artcldisppage/?artcsyscode=ART-20181010122553
 In addition thereto, a review has been made concerning the writings of the

American Civil Liberties Union. The ACLU has said that prosecutorial transparency

laws can indeed ensure that prosecutors may be enjoined to exercise the control and

discretion granted to them in a specific manner. 47 In doing so, prosecutors may

actually be compelled to act in their offices in manners which will ensure that

miscarriage of justice does not come to pass. If it would be possible to incorporate

this in the duties of elected city and provincial prosecutors of the Philippines, there

is all the more reason to believe that the proposed bill will, in fact, address the

problem of miscarriage of justice. In the conduct of the review, there seems to be no

similar law which can require Philippine prosecutors to make disclosures to the

defense counsel prior to the conduct of the criminal trial other than those which are

required to be had in a complaint or information.

Reviews have also been made of the selected State Constitutions of the United

States concerning the election of prosecutors as well as statutory provisions

concerning the election of local government officials in the Philippines. It was also

observed that there are no similar provisions in the Constitution of the Republic of

the Philippines which provide for or prohibit the election of prosecutors. Thus,

because the creation of such a law would not offend the Constitution, the

American Civil Liberties Union. 2019. “Unlocking the Black Box: How The Prosecutorial Transparency Act Will
47

Empower Communities and Help End Mass Incarceration.”

implementation of a system of electing prosecutors may indeed be done through

legislation. This was performed as well so as to see which model may be appropriate

in the creation of the proposed bill. Having done so, it seems already evident that the

proposed bill will be heavily modelled on the pertinent provisions of the New York

Constitution as well as the Local Government Code, incorporating some of the

characteristics found in the other selected State Constitutions as well as the

prosecutorial transparency laws of the United States. This method for doing the same

will further be discussed later on in Chapter 3, and then applied in Chapter 4.

 Chapter 3

RESEARCH METHODOLOGY

This chapter will discuss the research method which has been chosen and used

in order to attain the purpose of the study which is to develop a proposed legislative

bill which repeals the laws which implement a system of appointing chief city and

provincial prosecutors. The proposed legilative bill will put in place a system which

allows residents of local government units to elect those will act as chief prosecutors

having jurisdiction over the local government units – chief city prosecutors for cities,

and chief provincial prosecutors for clusters of municipalities.

This study aims to create a proposed legislative bill providing for the

adaptation of a system of electing chief prosecutors, similar to the system peculiarly

adopted by the nearly all States of the United States of America, as a means of

lessening the instances of, if not absolutely eliminating, miscarriages of justice.

In chapter 2, the study has shown how studies previously conducted and

articles previously written have proven that the exercise of prosecutorial discretion

and judgement have contributed to the miscarriages of justice which were made most

apparent by the statements made by the Supreme Court of the Republic of the

Philippines by way of obiter. The discretion mentioned is that discretion which is

exercised by prosecutors who were appointed by one appointing authority-the

President of the Republic of the Philippines. The study will now seek to provide a

solution to the same by creating a proposed legislative bill which will provide for

the abandonment of a system of appointing chief city and provincial prosecutors -

those which exercise discretion which cannot even be questioned by courts except

in cases of grave abuse of discretion amounting to lack or excess of jurisdiction, and

putting in its place a system which will allow residents of municipalities to elect

chief provincial prosecutors which will have jurisdiction over their local government

units on one hand, and residents of cities to elect chief city prosecutors on the other.

Research Design

In order to attain its purpose, the study has chosen to adopt a generic

qualitative method which will look at information, journal articles, even

jurisprudential declarations made by the Supreme Court, which will prove the

primary constructs of this study, namely: how grave the problem of miscarriage of

justice has become in the Philippines has become, how the unchecked exercise of

prosecutorial discretion has created the climate which allowed the many intances

where miscarriage of justice was the result, how the same unchecked exercise of

prosecutorial discretion has its roots on the fact that chief prosecutors are appointed

by one appointing authority instead of elected by those under their jurisdiction who,
according to recent trends observed by journalists such as Krinsky and organisations

such as Amnesty International, seem to have an opinion that it would be better to

avoid prosecuting those who are accused and instead, focus on rehabilitating and

reforming these persons who have been, according to the Supreme Court, most likely,

wrongfully deprived of liberty.

The study will rely heavily on information which has been interpreted by

related litarture which have already proven that exercise of prosecutorial discretion

which does not provide for much checks and balances have contributed to the

number of miscarriages of justice. This will also be corroborated by interviews with

a number of authorities who have been instrumental in correcting the Philippine’s

problem on miscarriages of justice. In addition thereto, the study will also rely on

sources which reflect the will of the Filipino people as to their preference in the

prosecution of crimes.

From this, the study will then seek to attain its main objective which is to

create a proposed bill. The proposed bill will provide for the implementation of a

system of electing city and provincial prosecutors. In addition thereto, the bill shall

contain provisions concerning the duties and responsibilities of these prosecutors,

their jurisdictions, their qualifications, their disqualifications and the mechanisms

and grounds by which they may be removed from office. This will be done by

conducting a thorough study of the provisions of the State Constitution of New York
concerning these same matters. The bill shall also incorporate provisions of the four

other selected State Constitutions to address any lapses which may be found in the

provisions of the New York Constitution regarding the election of prosecutors. In a

similar manner, the proposed bill shall also incorporate some provisions of the

prosecutorial transparency laws of the United States. This shall be done in order to

better facilitate the manner in which prosecutorial control and discretion shall be

exercised. This is also to address the American Civil Liberties Union’s position that

prosecutorial transparency can also work so as to prevent miscarriage of justice.

Sources of Data

An interview shall be conducted with Dr. Maria Corazon de Ungria as the

responded, Dr. De Ungria is well acquainted with how miscarriage of justice seems

to have worsened in the Philippines because prosecutorial discretion has been

consistently exercised with disregard of physical evidence and instead, relying

heavily on testimonial evidence.

An interview will also be conducted with Ms. Ma. Socorro Diokno, the

Secretary-General of the Free Legal Assistance Group (better known as FLAG), as

respondent. She will be interviewed in order to gain her insight on the ways in which
misguided exercise of prosecutorial discretion has contirbuted to the Philippine’s

problem on miscarriage of justice.

Another founding member of Innocence Project – Philippines is Atty. Jose

Manguera Jose, the spouse of Dr. Maria Corazon De Ungria, will also be

interviewed. This interview will primarily be focused on assessing possible

safeguards, mainly assessing those provided in the prosecutorial transparency act of

the United States, which may be incorporated in the proposed bill. His interview will

also be conducted to address the question of how to ensure that the electorate is well

informed concerning the policies implemented by city and provincial prosecutors

and also to provide mechanisms similar to the ones in place in the Local Government

Code which will allow the electorate in the local government units to take steps for

the removal of prosecutors who exercise their discretion in a manner which may or

do in fact result in miscarriage of justice. It is worthy to note and to point out to the

reader the fact that Atty. Jose Manguera Jose and Dr. Maria Corazon De Ungria,

being advocates to end miscarriage of justice in the Philippines, were among the

main proponents of the DNA evidence rule which was implemented by the Supreme

Court.
Treatment of Data

Following its very objective, the study will utilize available data in order to

show that Filipinos, given the power to do so, would choose to elect prosecutors who

will ensure that no one will receive penalties for crimes which they have not

committed nor be penalized unjustly and excessively for the crimes which have

actually been proven to be committed by persons deprived of liberty by reason of

miscarriages of justice.

The interviews will then be utilized by the in order to determine the many

ways in which chief prosecutors, intentionally or unintentionally, may exercise the

wide range of discretion granted to them both by law. From there, the study will seek

to imitate the manner in which legislators, after having conducted investigations in

aid of legislation, then identify the gaps in the law which need to be addressed, and

then create measures which will be able to prevent the same.

Having conducted the necessary interviews and incorporated the data gathered

as well as the provisions of the New York Constitution, other selected State

Constitutions, and the Prosecutorial Transparency Act, the study will thus seek to

create a proposed legislative bill which will consist of these main parts: the express

repeal of all laws which provide for the appointment of chief city and provincial

prosecutors and the implementation of a system of electing the same, the

implementation of safeguards in order to ensure that the electorate are kept

appropriately informed on the manner in which their elected prosecutors exercise

the discretion granted to them, the codification of standards by which prosecutors

must exercise the wide control and discretion granted unto them as well as

transparency with defense counsel, and the provision of mechanisms which will

allow dissatisfied members of the electorate to appropriately raise their grievances,

and even cause the suspension and/or removal of those prosecutors who improperly

abuse the discretion granted to them and the manner of succession of powers in such

cases.
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